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CJEU zooms in on framing

The Court of Justice of the European Union (CJEU) has held that framing copyright protected videos is not a copyright infringement, even if the framing occurred without the permission of the copyright owner. In today's tech-savvy world, framing copyright content without the permission of the rights holder is a pervasive feature of internet use, and therefore the CJEU's response to the question of its legality has been highly anticipated.

The facts and background

BestWater International GmbH (BestWater), a company selling water filtrating systems, sued two individuals (Michael Mebes and Stefan Potsch) for uploading BestWater's promotional video (which was already available on YouTube) on their personal websites through framing, without the permission of BestWater.

Framing allows internet users to click on a link which retrieves and shows content from the third party that hosts it (in this case YouTube) in such a way that when viewed the linked content is then "framed" by content on the website which contains the link. It means that content stored on a different website can be displayed independently of that website. The user does not have to leave the website containing the link to see the linked content, resulting in the user not necessarily realising that the content is hosted on a different website.

BestWater had been referred to the CJEU by the German Federal Court over a year before the case was eventually heard as it was stayed pending a decision in Svennson v. Retriever Sverige AB (C-466/12)(Svensson), a case that addressed the issue of hyperlinking under online copyright law. The ruling in Svennson- that the owner of a website may use hyperlinks to redirect users to copyright protected works which are freely available and accessible on another site, without the permission of the copyright owner- was essentially followed and developed in BestWater.

CJEU judgment

On 21 October 2014, the CJEU decided in BestWater that embedding another person's content within a website via framing when such content had already been made freely and lawfully available to the public on a third party website does not constitute a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC), and therefore is not infringing the copyright owner's content.

This is because the "communication to the public" was not made available by different technical means than the initial communication nor, crucially, was it held to be directed to a "new public" (i.e. an audience not envisaged by the copyright owner when authorising the initial communication to the public). The CJEU also noted that it is immaterial which linking technique is used, as long as the link leads to a website that is available to the public as a whole.

Conclusion

Essentially, the "new public" requirement will not be met if the content is already freely and legally available on another website with the consent of the rights holder. However, there still exists uncertainty around whether the original linked content needs to have been originally made available with the rights holder’s consent. In BestWater the content was not lawfully available as it had been placed on YouTube without BestWater's consent, but neither the German Federal Court of Justice nor the CJEU addressed this point. Equally, copyright infringement could occur if the original linked content was not made freely available. There is now general consensus that restrictions such as paywalls would mean that content is not freely available, however the position is less clear cut in relation to mechanics such as free logins and registrations. While BestWater and Svensson provide the direction of travel for forthcoming copyright jurisprudence in the EU, it will be for future cases to answer these remaining questions.

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